It’s the Obstruction, Not the Violence, We Should Be Tracking
For months, critics of former President Trump have sought a way to tie him to the violence during the attack on the Capitol. After all, the charge of “seditious conspiracy” is a tempting, juicy one carrying up to a 20-year sentence. Given this, many questions so far have centered around causation, or at least prior knowledge, of the violence: Did Trump or his cohorts coordinate with any paramilitary groups or violent protesters? How much did they know about the possibility of violence? Did they whip the crowd into such a frenzy as to be guilty of incitement of insurrection?
There are two problems with these lines of inquiry. First, for seditious conspiracy to lie, you need to prove that defendants used, or at least planned to use, force against the United States. While that seems applicable for the violent insurrectionists, it’s a far harder thing to prove with any non-violent defendants. Trump and his cronies will claim that they only were trying to bring the questions of alleged election fraud to the forefront of our national concern through peaceful rallies and legal objections. Those things don’t rise to the level of sedition, they would argue, because they don’t involve force or the planned use of force. Even some of the biggest alarm bells, e.g. Steve Bannon crowing on his podcast on January 5 that “all hell is going to break loose tomorrow” and Rep. Mo Brooks wearing body armor at his Ellipse rally speech, conceivably could be explained away. “I meant all hell would break loose when Congress objects successfully,” one can imagine Bannon arguing. “I was afraid of Antifa,” Rep. Brooks could say.
Second, as Trump’s former fixer Michael Cohen has warned, Trump is very good about never telling anyone to do anything blatantly illegal, and he doesn’t use email or send texts that could be used against him later. Instead, as is common with a criminal boss, people in Trump’s sphere of influence generally understand what it is he wants without him having to say it. In keeping with this, and in nearly every instance so far, Trump has set up plausible deniability. He need only hew to the line that he actually believed the 2020 election was fraudulent and stolen for nearly any action to sound reasonable and proper given the stakes.
So if we can’t ever prove that Trump ordered or his people planned or intended to use violence to achieve disruption of the electoral count by Congress on January 6, does that mean we’re stuck? Not necessarily.
A recent ruling by Trump-appointed Judge Dabney L. Friedrich has opened an intriguing path forward for prosecutors. As I wrote earlier this week, under the obstruction statutes there’s a 20-year sentence for “corruptly” impeding or disrupting an official proceeding. The provision falls under Section 1512(c) of that set of laws. In her opinion, Judge Friedrich walked through why the Electoral Count, with its presiding officer, opportunities to object, and official outcome announced, qualifies as an official proceeding. That seems pretty basic and clear. But on the question of the meaning of “corruptly” she broke it down into two notions, either of which could result in a finding that a defendant acted “corruptly”:
“[T]he plain meaning of “corruptly” encompasses both corrupt (improper) means and corrupt (morally debased) purposes. … The Court agrees that § 1512(c)’s proscription of knowing conduct undertaken with the specific intent to obstruct, impede, or influence the proceeding provides a clear standard to which the defendant can conform his behavior.”
She also noted that “‘Corruptly’ (or wrongfully) also acts to shield those who engage in lawful, innocent conduct—even when done with the intent to obstruct, impede, or influence the official proceeding—from falling within the ambit of § 1512(c)(2)” Judge Friedrich used the example of someone urging a defendant to plead the Fifth Amendment right against self-incrimination. That arguably would “impede” a court proceeding, but the urging of it would not be unlawful or wrong.
In the case of the violent defendants, their plan was to enter the Capitol and disrupt the counting through “independently criminal” acts, Judge Friedrich wrote, and therefore those defendants could be prosecuted for obstruction under Section 1512(c), including its 20-year sentence. In short, what they did was illegal and they knew it, making it by definition corrupt or wrongful. But then she added this gem, as if presaging the question we now face with the former president and his allies: “[O]ther cases, such as those involving lawful means ... will present closer questions.”
Obstruction often works this way. It might have been lawful, for example, for Trump to have fired FBI director James Comey, but it was still arguably an abuse of power and quite corrupt to do so. Similarly, it might have been lawful for Trump to place a call to Georgia Secretary of State Brad Raffensperger to tell him to “find” him another 11,780 votes and to urge lawmakers in that state and others to undo their electoral certifications, but these actions were nevertheless done with improper and debased (i.e. corrupt) intent. And it might even have been lawful for Trump to put pressure on Vice President Pence to completely ignore his constitutional duties and go along with a White House scheme to delay the Electoral Count—and lawful as protected speech to tweet about Pence lacking the courage to do the right thing just as a violent crowd was breaking into the Senate chambers—but it was nevertheless patently corrupt and wrong to do so.
Rep. Liz Cheney picked up the “corruptly” thread in her recent remarks on Mark Meadows Contempt of Congress hearing:
“Mr. Meadows’s testimony will bear on another key question before this committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”
Were the Department of Justice to adopt Judge Friedrich’s and Rep. Cheney’s approach and charge non-violent coup conspirators under Section 1512(c), then a jury wouldn’t need to find a direct link between Trump and his allies on the one hand and the violent attack on the Capitol on the other. They would only need to find that Trump and other defendants conspired to achieve an obstruction of an official proceeding and that they did so with corrupt intent.
This section of the obstruction laws was written in order to address witness tampering, so an example from that world might help illuminate how it works. Say a mob boss is facing charges, and he knows the identity of the witness who will be testifying against him. It’s someone he’s worked with before, so the mob boss calls the wife of the witness on her birthday, ostensibly simply to wish her and her husband good health. No surprise, but the witness suddenly decides not to cooperate. The phone call, by itself and without further context, was “lawful.” What’s wrong with a nice birthday call, right? The intent of the call, however, was corrupt, and the means carried an implied threat. Because it resulted in obstruction of the court proceeding, it could be independently prosecuted.
This seems a far more promising approach than trying to find smoking gun evidence tying the former president and his allies directly to planned violence on January 6. We might not like the fact that this is how Trump operates—through innuendo and veiled threat—but common sense and logical inference about guilt often prevails where the circumstantial evidence is strong, as it is here.
One final point: The facts may well show in the end that the violent attack actually derailed the conspirators’ plan to object to the Electoral Count, but when Trump saw how it might nevertheless achieve the same end, he happily allowed it to proceed. This may soon have the whole nation also asking this: Is it wrong to fail to stop something dangerous that you yourself helped put into motion? After all, if you start a fire that could endanger others’ lives and property but you fail to even try to put it out when you alone had the opportunity, you can be charged criminally in many jurisdictions.
By standing by and watching the attack on the Capitol gleefully for hours while even his allies begged him to call off the mob, did the former president violate his duty to “faithfully execute the Office of the President” as he swore under the Constitution to do? Did this rise to the level of corruptly obstructing an official proceeding, punishable by up to 20 years under Section 1512(c)?